Facts

E was the editor of a daily newspaper. He published an interview with an army officer about military attitudes to the Kurds. He was prosecuted in a security court, convicted of inciting racial hatred, fined and sentenced to 2 years in jail. Publication of his paper was banned for 20 days. An appeal was dismissed. He complained to Strasbourg of breaches of Arts 6 and 10 ECHR, on the grounds that the domestic tribunals lacked independence and impartiality and his right to freedom of expression had been unjustifiably infringed. He died in the course of the proceedings and the application was continued by his widow.

Issue

1. Had E’s Article 10 rights been violated?
2. Had E’s right to a fair trial under Art 6 been infringed?

Held

(Judge Turmen dissenting)
1. Art 10 had been violated. The measures imposed were prescribed by law, and had a legitimate aim, but were disproportionate and unnecessary to achieve that aim. The article had not, as the government argued, incited violence and terrorism. The reasoning of the domestic courts was insufficient to justify the sanctions imposed.
2. Art 6 had also been violated, as E could reasonably fear that the career soldier who had tried his case would not be independent or impartial in a matter alleged to concern national security.

Comment

This is not the first time the Turkish authorities have been found in breach of the Convention for using security courts and heavy sanctions where support for Kurdish interests is seen to be at issue. The main interest in the case lies in the fact that E’s widow was permitted to pursue the application, on the basis that she had a ‘sufficient legitimate interest’ in establishing that her late husband’s trial was unfair, and a ‘legitimate moral interest’ in showing his conviction was a breach of Art 10. Strasbourg jurisprudence on this point is scant, and hard to reconcile. In March 2005 the court held inadmissible an application under Article 10 by the daughter and executors of a man convicted of insulting behaviour by holding up placards denouncing homosexuality: Fairfield v UK.

More from 5RB

2018 Chambers and Partners on 5RB2018 Chambers and Partners on 5RB

5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.

New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.

Golden Eye 'Pay or Else' LetterGolden Eye 'Pay or Else' Letter

In this article, first published onLexis®PSL IP & IT , 5RB‘s Christina Michalos looks at the issues surrounding speculative/volume invoicing (“pay or else”) for copyright infringement in relation to downloading from file sharing websites. Read the full articlehere.